1. Introduction
1.1 Unless we agree otherwise in writing (“Separate Engagement”), these terms and conditions apply to all Works we perform for you, and govern the use of Our Website together with any Products, as modified from time to time (“Terms”).
1.2 You accept these Terms by continuing to engage us.
1.3 If there is any inconsistency between these terms and the Separate Engagement, the terms of the Separate Engagement shall prevail to the extent of that inconsistency.
1.4 These Terms contain the entire understanding between you and us in relation to the delivery of our services and supersedes any previous agreements, understandings or representations (whether oral or written).
1.5 Definitions
Developed IP means any Intellectual Property Rights created by or on behalf of one party or jointly by the parties through the performance of Services.
Intellectual Property Rights means:
a all intellectual property rights, including all registered and unregistered rights in respect of copyright, designs, trade marks (including service marks), know how, confidential or other proprietary information (including trade secrets), patents, inventions, computer software programs (in both source and object code form) and all other rights relating to inventions or discoveries or resulting from intellectual activity, whether in New Zealand or elsewhere;
b any application for, or right to apply for, registration of any matter described in paragraph a;
c any right to take action in relation to infringement or other misuse of any matter described in paragraph a; and
d any Moral Rights.
Material means, as relevant, any tangible or intangible records of information, documents, reports, plans, charts, photographs, software (including source and object code), inventions, know-how, data and other materials in any media whatsoever.
Moral Rights means the rights granted under Part 4 of the Copyright Act 1994.
Our Website means any website or service designed for electronic access by mobile or fixed devices which is owned or operated by us, including its web pages, as modified from time to time.
Price means the Price for the Works recorded on Our Website or provided separately to you.
Products means the products, as varied from time to time, available for viewing or download from Our Website. Related Deliverables are not Products.
Services means, in respect of the Works, the services:
a to be performed, as varied by any direction given by you and agreed by us from time to time; or
b ancillary to, or inherent and necessary for the proper performance of the services, whether or not expressly identified or described in these Terms.
Related Deliverables means, in respects of the Works, any Materials we are required to supply or supplies to you as part of, or in connection with, the Works and in respect of which either a right to use and exploit, or title is intended to pass and includes Developed IP.
Scope of Works means the written specification of the Works you have instructed us to do, and which we agree to prepare for you including without limitation:
a an overview of the Services to be performed;
b the expected Related Deliverables; and
c The Price for completion of the Works.
Terms means the Terms and Conditions in this document.
‘We’, ‘our’ or ‘us’ means Samantha Brown trading as Designingly Co, a registered sole trader.
Works means the supply of Related Deliverables or the performance of the Services, or both of them, as the Scope of Works requires.
1.2 Interpretation
In this agreement unless the context otherwise requires:
a A reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.
b A reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.
c In the context of permission, “may not” in connection with an action of yours, means “must not”.
d The headings to the paragraphs to this agreement are inserted for convenience only and do not affect the interpretation.
e Any agreement by either party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
f In any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party, such cost calculated at $150 per hour.
g These Terms and conditions apply to all Works performed or supplied by us. They prevail over any terms proposed by you.
2. Our Services
2.1 Where we have provided a written quote for performance of the Works, that quote will be valid for 30 days only. At expiry of this time, the quote will terminate.
2.2 In circumstances where it is not possible to quote the Works, the Price will be calculated on the basis of time involved and will reflect the hourly rates of the persons involved in performance of the Works.
2.3 Upon payment of the Price, we agree to perform the Works in accordance with the Scope of Works.
2.4 You acknowledge and agree that the Price is non-refundable and non-transferable.
2.5 Where we have provided you a Scope of Works, you continued instruction represents your acceptance and approval of the Scope of Works.
2.6 Our engagement and obligations to you will cease upon completion of Works. Should you re-engage us to perform further Works, that engagement is a separate engagement and not a continuation of the prior Works.
2.7 In the event the performance of the Works fall being any agreed programme of works, we will notify you and, where reasonably practicable, shall take all practicable steps to remedy such delay.
2.8 Neither party will be liable to the other, excluding your obligation to pay the Price, for any failure or delay in performing any obligation prescribed by these Terms where such failure is directly caused by circumstances beyond that party’s reasonable control.
3. Products
3.1 We make no representation, promise or other inducement concerning the accuracy or suitability of the Product(s) for any purpose.
3.2 You acknowledge that you have not relied upon any representation or inducement by us in deciding to enter into this agreement, except for those expressly set out on Our Website.
4. Sponsored Content
4.1 Our Website may contain forms of advertising, including sponsorship and product placement. All sponsored content will be stated. Brands have little editorial control over the content we create with regards to a sponsored post (or gifted products that appear on the post). We only recommend products and brands that we love and respect.
4.2 Occasionally, Designingly Co may seek financial payment in exchange for promoting, recommending, and showcasing Products or Services. We may also get compensation for featuring Products or goods in our interior photographs across Our Website and social media.
5. Your responsibilities
5.1 You agree to provide us promptly with any information or assistance that we reasonably require to perform the agreed Works.
5.2 You must notify us promptly if any information you have given us becomes incorrect or misleading (or potentially so). You must take all reasonable steps to correct any communication or document that refers to or is based upon any such information.
5.3 Where we produce a Related Deliverable in reliance upon information or Materials provided to us, and such information or Materials is unclear, false or inaccurate, we accept no liability for any inaccurate Related Deliverable
5.4 You must not act in a way, or use or introduce anything (including any virus, worm, trojan horse, timebomb, keystroke logger, spyware, (or other similar feature) that in any way compromises, or may compromise Our Website or otherwise attempt to damage or interfere with Our Website; and
5.5 only access Our Website via standard web browsers and not by any other method. Other methods include scraping, deep-linking, harvesting, data mining, use of a robot or spider, automation, or any similar data gathering, extraction or monitoring method.
6. Your indemnity to us
6.1 You agree to indemnify us against any and all costs, expenses or liabilities we incur to any person:
a in relation to any claim against us (including, but not limited to, any claim by a third party) arising from or connected with any breach of your responsibilities to us; and/or
b by relying on any information provided to us by you or on your behalf and which is false, misleading, incomplete, or breaches another party’s intellectual property, confidentiality or privacy rights.
7. Payment
7.1 In addition to the Price, we may incur additional costs or make reasonable payments to third parties on your behalf.
7.2 Accounts for payment of the Price are to be paid by you within 14 days of issuance of our tax invoice, or such other date indicated on the tax invoice.
7.3 If you fail to meet the requirements of clause 5.2, we will be entitled to suspend performance of the Works on 2 working days’ notice in writing and withhold Related Deliverables until payment (including any reasonable costs incurred in relation to the suspension) is received in full. We will not be liable to you or any other person for any losses arising from the suspension of the Works or the withholding of any Related Deliverables.
7.4 Interest will be charged at the rate of 1.5% per month compounded monthly on all overdue accounts and you agree to pay such amounts together with any debt recovery costs in full including legal costs on a solicitor/client basis.
7.5 To the maximum extent permitted by law, we accept no responsibility for payments made via online credit card means, include Stripes’ secure payment gateway. For more information about how we collect, store, and use your data, including payment information, please review our privacy policy. A copy of which is available here.
8. Confidentiality
8.1 We will protect and hold in strict confidence all information that we acquire from you during the course of performance of the Works.
8.2 You agree to hold in strict confidence any confidential or proprietary information belonging to us.
9. Intellectual Property Rights
9.1 All Intellectual Property Rights in the Related Deliverables prepared or created by us belong to us. We grant you a non-exclusive licence (which cannot be assigned) to use the Related Deliverables solely for the purposes relating to the Scope of Works and for no other purpose. For clarity, you may not use any Related Deliverables for commercial benefit. The licence is conditional always on your ongoing compliance with the Terms, including payment of the Price.
9.2 All Developed IP vests exclusively on its creation in us. To the extent that is not possible, by accepting these Terms, you assign to us (or our nominee) all present and future rights you may have in the Developed IP, with effect from the date of its creation.
9.3 Upon request, you agree you will procure from any person who has any Moral Rights in any part of the Developed IP an irrevocable and unconditional consent for us to use or deal with the Developed IP as contemplated by this agreement.
9.4 You warrant that any Materials provided to us by you, and which are inherently necessary in the proper performance of the Works, will not breach any third party’s Intellectual Property Rights. Misappropriate a trade secret or breach any person’s confidence.
9.5 Unless expressly stated, design Services together with Related Deliverables are conceptual in nature and not suitable for manufacturing or construction purposes. Due to uncontrollable variations in screen resolution, image quality and personal perception, the digital representation of colour, texture and quality of products may not be true to physical appearance.
10. Marketing
Where you have provided a testimonial to us, you agree we may publish this testimonial, together with the author’s name, on Our Website, other social media channels or for any promotional purpose on any medium whatsoever.
11. Consumer Laws
11.1 Where the services are “consumer” services as defined in the Consumer Guarantees Act 1993 and you is not in trade, nothing in this agreement will exclude or limit your rights or remedies under that Act, and in particular clauses 8.2 and 9 of this agreement will not apply.
11.2 Where you is in trade, the services are acquired in trade and it is fair and reasonable under section 43 of the Consumer Guarantees Act 1993 and section 5D of the Fair Trading Act 1986 that the parties be bound by this clause 8.2, the provisions of the Consumer Guarantees Act will not apply to this agreement nor will the following provisions of the Fair Trading Act apply to the either party’s conduct or representations if unintentional: section 9 (misleading conduct), section 12A (unsubstantiated representations) or section 13 (false or misleading representations).
12. Liability
12.1 If we breach this agreement we will only be liable to you for the costs of remedying any defective Works (including any reasonable direct losses. We will not be liable for any other loss, damage or expense.
12.2 If we breach any duty we owe you, our liability will be limited to a sum equivalent to the total aggregate fees paid by you to us for performing the Works.
12.3 You agree to release us from all claims arising out of or in connection with the Works to the extent that our liability to you would otherwise exceed this amount.
12.4 The limitation of liability in clause 9.2 will apply:
a to any claim whatsoever that you may have against us; and
b to any kind of loss or damage you may suffer including, but not limited to, indirect and consequential losses (for example, loss of revenue, loss of profit or increased operating costs).
12.5 Any claim you may have against us (whether based upon negligence or breach of a contractual, statutory or other duty) will be further limited to the extent of the liable party’s proportionate contribution to the claiming party’s loss, damage or expense, irrespective of the legal basis for the contributions by others (including by the claiming party) or whether any recovery is obtainable from a contributory third party.
12.6 Any claim by either party (whether in contract, tort or on any other legal basis) must be filed in Court, or any Tribunal which has jurisdiction to determine such a claim, within six years of the date of this agreement or within six years of the date of the act or omission giving rise to the claim, whichever is the earlier, otherwise the parties will have no liability to each other. This clause will not adversely affect any time limitation defence available to a party under a statute.
12.7 The parties will be only liable to each other and disclaim responsibility for any liability, damage, loss or expense suffered or incurred by any other person or entity. Without limiting the scope of this disclaimer, if the Scope of Works to which the Works relate is leased, transferred, sold or otherwise disposed of in part or whole to any other person or entity, then we accept no responsibility in law to that other person or entity.
12.8 Our employees, directors, officers and agents are acknowledged by you to have no personal liability to you in connection with this agreement or the performance of the services as it would be unreasonable of you to rely on them personally.
13. Dispute Resolution
13.1 In the event of a dispute which cannot be resolved by good faith negotiations within 10 working days of the dispute arising, then we may by 2 working days’ notice in writing to you suspend our obligations under this agreement in which case you also cannot use any Materials relating in any way to the dispute. We will not be liable to you or any other person or entity for any losses arising from such suspension or the inability to use the documents.
13.2 Problems in design or any fault or defect which you becomes aware of must be notified to us in writing no later than 10 working days after you become aware of it. If you do not do this, any liability arising in relation to the defective Works (whether in contract, tort or on any other legal basis) will be reduced (or extinguished) to our liability will be reduced to take into account any contributory negligence on your part pursuant to the Contributory Negligence Act 1947;
14. Health and Safety
Each party agrees to comply with its obligations under the Health and Safety at Work Act 2015 (“the HSWA Act”). You agree that we will not at any time be the person who controls the place of work (as that terms is described within the HSWA Act) in which any construction related to the Works are undertaken.
15. Termination
15.1 The parties may terminate this Agreement by notice in writing to the other at their last known physical or email address in the event that the other party is in material default and has failed to remedy that default within 7 days of notice.
15.2 If the Agreement is terminated, you must pay all fees due up to the date of termination as well as all charges incurred up to that date.
15.3 If you terminate this agreement for any reason other than as a direct result of our default, you must also pay our loss of profits resulting from non-completion of the Works and any expenses and costs which we reasonable incur in relation to the Scope of Works and such payment is fair and reasonable.
16. General
16.1 These Terms and any other agreement we have with you are governed by New Zealand law and are subject to the exclusive jurisdiction of the New Zealand Courts. These standard terms of engagement may be changed by us at any time or times in the future. We will publish such changed terms on Our Website and each change will bind you in respect of any matters or Works after the publication of the change on Our Website.
16.2 No statement or representation that we have made to you that is not recorded in these Terms, excluding any Separate Engagement, shall form part of the agreement between us.
16.3 Any variations to this agreement, including the Scope of Works or nature of the Services, must be in writing and will be subject to the Terms.
16.4 This agreement cannot be assigned or transferred without the prior written consent of both parties, such consent not to be unreasonably withheld.
16.5 Neither party shall be in breach of its obligations under this agreement or incur liability to the other due to causes beyond their reasonable control. This does not include your obligation to pay our fees.
16.6 Each provision of this agreement is severable and independent. If all or any part of a provision of this agreement is invalid or unenforceable in any jurisdiction, that part or provision will be deemed to be severed for the purposes of that jurisdiction and will not affect the validity or enforceability of the remaining provisions or that provision in any other jurisdiction.
16.7 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties, and survives termination, completion and expiry of this Agreement. It is not necessary for a party to incur expense or to make any payment before enforcing a right of indemnity conferred by this Agreement.